• A person is mentally incompetent under the law if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner. (Penal Code section 1368.)

• Incompetent to stand trial is different than “not guilty by reason of insanity.” Incompetence to stand trial relates to the defendant’s ability to communicate with his or her attorney or understand the criminal proceedings against him or her, while an insanity defense arises when the defendant, at the time the offense occurred, is not responsible for criminal conduct because at the time he or she lacked substantial capacity either to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirements of law as result of mental disease of defect. (Penal Code section 1026.)

• One of the worst aspects of mental incompetency proceedings is that if the defendant is found incompetent and they are never “restored to competency”, then their case may be suspended indefinitely. If the defendant is charged with a felony, they may spend the rest of their lives in a state hospital, such as Napa State Hospital, without their case ever being resolved. Defense attorneys often refer to incompetency proceedings as a potential life imprisonment because of this.

• If medications are recommended by the psychologist, the court must ask the defendant whether he or she is willing to take those medications. If the defendant is unwilling to do so, then the court will hold a hearing to determine whether the defendant should be forced to take the medications. If the court determines that medications are necessary, the court will order the defendant to submit to the administration of those medications. This means that a defendant can literally be strapped to a table and forced to take the medication.

• If a person is mentally incompetent, then the judge must suspend the proceedings. This means that instead of litigating whether the defendant committed a crime, the issue then becomes whether the person is competent. The next steps are first, confirm mental incompetency, second, to order that the person receive mental health services to restore them to competency, and third, to have the defendant treated to restore them to competence.

• The judge, the prosecutor, or the defendant’s own attorney can bring up the issue of mental incompetence.

• The most common practice when the competency of the defendant is raised, is to suspend proceedings and have a psychologist examine the defendant. The psychologist then serves the judge, the prosecutor and the defendant with a report. If the report concludes the defendant is incompetent, then the judge will order another examination with the focus being on exactly what the defendant’s mental incompetency is, what medications may be helpful, and a recommendation about where the defendant should be house. For defendants charged with felonies, the law requires they be “housed” in a secure state hospital. For a defendant charged with only misdemeanors, the law allows them to be “housed” within community, meaning a local psychiatric facility.

• One of the main goals of incompetency proceedings is the restore the defendant to competency. This is accomplished via therapy, education, and medication.

• Another of the worse aspects of mental incompetency proceedings is that, if the defendant is charged with a felony and they are found incompetent, then they must wait to be transferred to available bed space at an authorized state hospital. To our knowledge there are only nine state hospitals for the whole state of California. This means that bed space is limited and even more li limited for female defendants. When a defendant must wait for bed space, they must wait in a jail cell in felony cases. Often these people’s mental condition deteriorates while waiting. This is one of the worst situations because the whole idea of these proceedings is to make the defendant better, but often results, at least at first, in them getting worse.

• Another aspect of incompetency proceedings that, as mentioned, a defendant can become worse while waiting for bed space at a state hospital. Often, one of the few people who understands and can help are family members who are thoroughly familiar with the particular symptoms of the defendant’s mental health condition and how to communicate with them. Unfortunately, when a person gets worse as a result of incarceration while waiting for bed space, also referred to as “decompensating,” that person loses the ability to authorize family members to visit them. The very person that may be able to stabilize a person is thereafter prohibited from even visiting them. In my opinion, this is one of the worst things that can happens.